Thomas Peter Koltai v World Dot Net Holdings Pty Limited and 1 Ors

[1999] NSWSC 830

CITATION:	Thomas Peter Koltai v World Dot Net Holdings Pty Limited & 1 Ors [1999] NSWSC 830 revised - 31/08/99
CURRENT JURISDICTION:	Equity
FILE NUMBER(S):	2502/99
HEARING DATE(S):	17/08/99
JUDGMENT DATE:	17 August 1999
PARTIES :	Thomas Peter Koltai (Plaintiff) World Dot Net Holdings Pty Limited ACN 064 949 926 (First Defendant) Raymond Roger Gatt (Second Defendant)
JUDGMENT OF:	Santow J

COUNSEL :	R Alkadamani (Plaintiff) A P Coleman (Defendants)
SOLICITORS:	Conway Leather Shaw (Plaintiff) Henry Davis York (Defendants)
CATCHWORDS:	CROSS-VESTING — Relevant factors — No need for disproportionate calling of witnesses — Cost orders reflecting possibility that facts may emerge contrary to basis on which cross-vesting order made.
CASES CITED:	Divinyls Holdings Pty Ltd v Billboard Pty Ltd (Young J, 17 October 1995, unreported)
DECISION:	Cross-vesting granted.

REVISED — 17 August, 1999
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J

No. 2502/99
THOMAS PETER KOLTAI
Plaintiff
WORLD DOT NET HOLDINGS PTY LIMITED ACN 064 949 926
First Defendant
RAYMOND ROGER GATT
Second Defendant
JUDGMENT — ex tempore

17 August 1999 1    This is an application by the Defendant/Applicant in a commercial dispute in relation to a company to cross-vest the proceedings from this Court to the Supreme Court of South Australia. The factors which Young J conveniently lists after citing the relevant authorities, doing so in Divinyls Holdings Pty Ltd v Billboard Pty Ltd (Young J, 17 October 1995, unreported) are these:

“Often in cross-vesting applications there are some particular factors that make it clear that one Australian forum is to be preferred rather than another. Often there will be proceedings in two different fora and there would be duplication of work and one finds that one proceedings was more advanced than the other. There are no such matters in the instant case, nor would it appear that there are any real differences in the law of New South Wales and the law of Western Australia.
The only factors that need to be balanced would appear to be these:
(a) The number of witnesses on each side of the proceedings;
(b) the place where the various parties live and carry on their business;
(c) The New South Wales jurisdiction clause; and
(d) the matter as to whether the factual events make it more convenient to hear the matter in Western Australia …”

2    Regrettably, the dispute is at a stage where it may not be clear precisely where the relevant factual events the subject of the litigation predominate, as between NSW and South Australia, if indeed in either place. While that matter could be made the subject of further evidence, there is a danger that the cost of drawing out the present application will be disproportionate, a factor which has also led me to decline an adjournment for the purposes of having witnesses available for cross-examination. Increasingly Courts are recognising the need for proportionality in keeping costs to their appropriate level having regard to the nature of the matters in dispute and the amounts involved.

3    It appears on the evidence before me that neither side has a knockout blow when it comes to a majority of witnesses in one state or another, or the practical unavailability of a crucial witness were travel required. There was some evidence from the Respondent that one particular witness, Mr Grigg the former director of the relevant company would find it inconvenient to travel to South Australia given his employment but I do not take that evidence as arising higher than that.

4    There is evidence however from Mr Gatt for the Applicant who is Chairman of the board of directors of the First Defendant to the effect that all of the business records of the First Defendant company are in South Australia. This is the place also where it is incorporated though it has in the past maintained a business and office in New South Wales before moving its business (as it appears) to South Australia, though that last is not conceded. The critical point which Mr Gatt emphasises is that “there are tens of thousands of pages of business records in filing cabinets and boxes in South Australia and the cost and risk and disruption likely to occur if these documents had to be transferred to New South Wales for this case would be extreme”; see para 5 of his affidavit of 15 July 1999.

5    The Respondent does not concede that the documents are of that volume or that, as the Applicant contends, they would all be subject to perusal for the purposes of discovery. On the other hand, the Respondent produces no evidence to the contrary but simply wants the opportunity to cross-examine Mr Gatt on that matter.

6    Having determined that some proportionality has to be maintained in terms of how the present application is dealt with, I believe the interests of justice are sufficiently met if that matter be noted. Should it transpire that the contention of Mr Gatt proves incorrect, that would be a matter properly to be the subject of an application for costs in relation to the cross-vesting. Were that to transpire, there would have been insufficient basis for cross-vesting in South Australia, on the evidence before me.

7    What persuades me on the present evidence that the interests of justice dictate cross-vesting in South Australia is that factor, reinforced by two other related matters. These are the availability of an early hearing date within five months in South Australia compared to no better than a prospect that expedition might be granted in New South Wales, and cost saving as regards access to the relevant documents for discovery.

8    Accordingly, I grant the Applicant’s Notice of Motion of 17 August 1999 in terms of order 1 of the Applicant’s Notice of Motion.

9    As to costs, while these ordinarily would follow the event, here I am dealing with an interlocutory application in circumstances where the relevant facts have not been tested with the rigour that might have been appropriate were I not concerned about proportionality in costs. Given the circumstances, I order that costs be reserved.

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Last Modified: 06/30/2000